Orissa High Court
Purna Chandra Roy vs Rohitaswa Rana And Anr. on 14 May, 1998
Equivalent citations: 1998(II)OLR147
Author: S.C. Datta
Bench: S.C. Datta
JUDGMENT S.C. Datta, J.
1. This is an application under Section 482, Criminal Procedure Code (for short 'the Cr.P.C). The petitioner seeks to quash the order of the learned Judicial Magistrate First Class, M. Rampur (for short the 'J.M.F.C.') dated 27.7.1989 taking cognizance of the offences under Sections 161 and 384, Indian Penal Code (for short 'IPC') in I.C.C. No. 9 of 1989.
2. The facts leading to the present case may be shortly stated thus:
At the relevant period the present petitioner was the Officer-in-charge of Narla Police station in the District of Kalahandi. Opposite party No. 1 was the complainant in I.C.C. No. 9 of 1989 before J.M.F.C, M. Rampur. In the petitioner's complaint, it has been alleged that on 12.4.1989 he had gone to the police station to lodge a complaint against one Sitaram Kar. But the present petitioner assured him that he would enquire into the matter and would visit his village. But he did not pay any visit to his village nor did he enquire into the incident. On 12.4.1988 the complainant went to the police station along with the witnesses to lodge a complaint, but the present petitioner demanded a sum of Rs. 1000/- from him in order to register a case against the said Sitaram Kar. Moreover, the present petitioner threatened him with consequences and obtained his signature on a blank sheet of paper. Thereafter, the complainant reported the matter to the Superintendent of Police, Kalahandi but the latter had not taken any steps in this regard. So he had lodged this complaint before the Magistrate.
After the complainant and his witnesses were examined, the J.M.F.C, took cognizance of the offence under Sections 161 and 384, IPC against the present petitioner and directed issuance of summons fixing his appearance by the impugned order dated 27.7.1989. The petitioner claims that he was not aware of the order of the learned Magistrate taking cognizance of the offences against him since he was transferred to Balasore District meanwhile. Later he was promoted to the rank of Inspector of Police and he was transferred to Jajpur. On coming to know about the fact that a warrant of arrest had been issued against him, he surrendered before the Magistrate on 7.3.1994 and secured his release on bail. On 10.3.1994 he met with an accident while he was riding on his motor cycle and for that he was admitted in S.C.B. Medical College and Hospital, Cuttack in Neurology Department. He was on leave from 10.3.1994 to 6.6.1994. On 8.8.1994, the counsel for the petitioner filed an application under Section 317, Cr.P.C. supported by medical certificate praying for dispensing with his personal attendance in Court. His prayer for representation through his lawyer was allowed and he was directed to appear in person before the Court on 8.9.1994. On 8.9.1994 he having not attended the Court, the learned Magistrate issued N.B.W. against him. According to the petitioner, his non-appearance before the Court was unilateral, inasmuch as, he was prevented from attending the Court because of his illness and because of further fact that he was posted far away from the place of trial. The petitioner submits that the learned Magistrate lost sight of the fact that Section 161, IPC has already been repealed and as such, he fell in an error in taking cognizance under that section. He alleges that he having submitted charge-sheet against the complainant on the basis of the complaint lodged by one Sitaram Kar, opposite party No. 1 (complainant) being revengeful has filed his complaint. Accordingly he has prayed for quashing the impugned order dated 27.7.1989 and subsequent order issuing N.B.W. against him.
3. Heard learned counsel appearing for the parties.
It appears that the learned Magistrate took cognizance of the offence under Sections 161 and 384, IPC on the basis of initial statement of the complainant and the witnesses examined by him under Section 202, Cr.P.C, The learned Magistrate was of the opinion that the present petitioner who was then acting as Officer-in-charge of Narla Police station has attempted to take illegal gratification from the complainant and obtained his signature on a blank sheet of paper by putting the complainant in fear of arrest. It is accepted that Section 161, IPC has since been repealed with effect from 8.8.1988. Certainly, therefore the order of the Magistrate taking cognizance of the offence under Section 161, IPC on 27.7.1989 against the present petitioner is bad in law and as such it cannot be sustained. So far as the order of the learned Magistrate taking cognizance of the offnece under Section 384, IPC is concerned, it appears that the offence under this section has been establishedprima facie against the present petitioner. So it cannot be said that the learned Magistrate was unjustified in taking cognizance under this section. Therefore, the order of the learned Magistrate so far as it relates to taking cognizance of the offence under Section 384, IPC is sustained. However, the impugned order of the learned Magistrate taking cognizance under Section 161, IPC is quashed.
4. Regarding the order of the learned Magistrate dated 8.9,1994 directing issuance of the N.B.W. against the petitioner, the learned counsel appearing for the petitioner submits that the petitioner will appear before the learned Magistrate within a month from this date and seek recall of the N.B.W. and pray for releasing him on previous bail bond or a fresh bail. However, considering the submissions made by the counsel for the petitioner, it is deemed appropriate to pass the following order :
The petitioner do appear before the learned J.M.F.C., M. Rampur in connection with I.C.C. No. 9 of 1989 of his Court within a month from this date and pray for recalling N.B.W. issued against him by the learned Magistrate vide order dated 8.9.1994. He may make prayer for releasing him on a fresh bail or pray for releasing him on previous bail bond. If such an application is made, the learned Magistrate will consider the same on merit and pass appropriate order in accordance with law.
5. As observed earlier, the order of the learned Magistrate taking cognizance of the offence under Section 384, IPC is sustained while that so far as it relates to 161, IPC is set aside. Since the case is of the year 1989, it is of utmost importance that the case should be disposed of as quickly as possible after appearance of the petitioner the trial Court. The learned Magistrate would do well to dispose of the same as expeditiously as possible preferably within a period of six months from the date of appearance of the petitioner before him. Till appearance of the petitioner before the trial Court within a month from the date of this order, the N.B.W. issued against him shall not be executed.
The stay order passed in Misc. Case No. 858 of 1994 by this Court on 27.10.1994 is vacated.
With the above observation the Criminal Misc. Case is disposed of.